Unanswered questions in Arpaio contempt case likely to linger after November vote

By Monica Lindstrom | August 22, 2016 at 9:35 amUPDATED: August 22, 2016 at 3:17 pm

(AP Photo/John Locher)

LISTEN: Monica Lindstrom - KTAR Legal Analyst

Your browser does not support the audio element.

After more than a year of hearings and arguments, U.S. District Court Judge G. Murray Snow issued his order recommending that criminal contempt charges be filed against Maricopa County Sheriff Joe Arpaio, Chief Deputy Sheridan, Chief Deputy Jerry Sheridan, Capt. Steve Bailey and former attorney for the Maricopa County Sheriff’s Office Michele Iafrate on Friday.

But he left it up to the Department of Justice to decide whether perjury charges should be filed as well:

“[T]he court refers Sheriff Joseph M. Arpaio to another Judge of this court…for a determination of whether he should be held in criminal contempt for: (1) the violation of this court’s preliminary injunction of December 23, 2011; (2) failing to disclose all materials that related to the Montgomery investigation in violation of (this court’s multiple orders); and/or (3) his intentional failure to comply with this court’s order …that he personally direct the preservation and production of the Montgomery record to the (court) Monitor.”

“[T]he court requests that the United State Attorney for district of Arizona, John M. Leonardo, or his designee(s), prosecute this matter. If the United State Attorney declines the appointment he should so inform the judge to whom the criminal contempt matters arising from this case are referred, so that an additional assignment to a prosecuting attorney may be made if that judge deems it appropriate. “

Let me break this down to what you need to know to understand what all this means and what could happen to “America’s Toughest Sheriff” and others.

Criminal contempt charges flow from the intentional refusal to follow the orders of a court. If a court orders you to do something and you intentionally refuse to do so, then you could be charged with criminal contempt.

In his 32-page decision, Snow explains how he issued numerous orders that Arpaio and others intentionally refused to follow and, as such, he is recommending the prosecutor file a criminal case.

Now, let’s talk about perjury. A charge of perjury typically flows from intentionally lying while under oath, which could result in criminal perjury charges.

Snow did not mince words when he wrote “This court has found…that Sheriff Arpaio and Chief Deputy Sheridan intentionally made a number of false statements under oath. There is also probable cause to believe that many if not all of the statements were made in an attempt to obstruct any inquiry into their further wrongdoing or negligence.”

However, he did not take a position on whether perjury charges should be filed. He simply wrote, “The United States Attorney is presumably already aware of this court’s findings of fact with respect to Sheriff Arpaio and Chief Deputy Sheridan’s untruthful testimony. Whether any resulting criminal prosecutions are merited is a matter appropriately left to the discretion of the Department of Justice.”

Snow has handed over the criminal side of this case to the prosecutor. It is now up to the prosecutor to decide whether to file criminal charges or not.

In the event the federal prosecutor decides not to, another judge could appoint another attorney as a “special prosecutor” to go forward with the charges.

Whatever prosecutor is involved, he or she have plenty of time to make a decision. They can decide before the election in November or they could wait until after. As for an actual trial, if it came to that, it could be years away.

If criminal contempt charges and/or perjury charges are filed against Arpaio, and he is convicted, he could face jail time. The amount of time is based on several factors, such as the exact charge and which judge sentences him.

Considering his age and the danger of having him in the general population, it is highly unlikely, even if convicted, that he will ever see the inside of a jail cell as a resident.

What does all this mean for Arpaio in regards to his campaign to be re-elected as sheriff of Maricopa County?

Let’s say he is re-elected in November and is convicted down the road for either a misdemeanor or a felony. Arizona law addresses the convictions of public officials and holds that a felony conviction creates a vacancy in that office and that office would obviously need to be filled.

It also explains that, upon conviction, the court shall pronounce judgment that the accused be removed from office. The official could then choose to appeal the conviction but, even if he or she does, that official would still be suspended from office until the appeal has been concluded. In that event, the vacancy would have to be filled.

According to this, if convicted, Arpaio would be removed from office and, if he chose to appeal, he would be suspended pending the outcome.

However, this is only for a felony. This procedure doesn’t appear to apply to a misdemeanor conviction.

With his decision, Snow answered the question of whether he would refer Arpaio and others for criminal contempt. However, he left other questions up in the air and we likely will not find out those answers until after the November election.